The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-02-24
Judge Niblack's Opinion.


until the people, in their sovereign capacity, shall
change the Constitution.
Judge Niblack's Opinion.
/ concur with the conclusion reached in this
case, that. upon the facts disclosed by the rec
ord, the court below had no jurisdiction over
the person of the appellant. and that for that
reason, if for other, the judgment appealed
from ought to be reversed l also agree that,
having reached the conclusion that there no
jurisdiction over the person of the appellant,
| there is nothing We can say on the merits of the
controversy which can properly be considered
OF binding authority decision in the caus
But trust that under the circumstances. "
will not be deemed inappropriate for me to ex-
press some individual views on some Of the
questions discussed by my brother judges who
have preceded me.
| I am further of the opinion that the CO
| below did not have, and could not have. any
| jurisdiction over the subject matter of the
action. Sections 4, and of Article 5 of the
| present Constitution of this State. as they are
known by their original numbers, are as follows:
| Section A. In voting for Governor and Lieutenant
governor. the electors shall designate for whom they
vote Governor and for whom Lieuten-
ant-governor The returns of election for Gov
and Iientepa governor shall be sealed up and
transmitted the seat of government directed to the
Speaker of the House of Representatives who shall
open and publish them in presence Of both houses OF
/ Sec 5. The persons respectively having the high
number of votes for Governor and Lieutenant
governor. shall be elected but in two more
persons shall have an equal and highest number of
for either office the General Assembly SHALL by
Joint vote. forthwith proceed to elect one of said
persons Governor or ACKNOWLEDGEMENTS as the case
may be
| Sec. 6. Contested elections for Governor Iieu-
tenantgovern shall be determined by the General
Assembly in such manner may be prescribed by law.
| These provisions of the Constitution, as be-
! lieve, confer upon the General Assembly OF this
| State exclusive power and control over:
First, acting in part through the Speaker of
the House of Representatives, who is charged
with the duty Of opening and publishing the re-
turns, the matter of computing the votes cast at
| any election for Governor and Lieutenant gov
ernor. respectively. and of determining and de
claring the result arrived at by such computa-
| ton; secondly, the matter of electing both the
| Governor and Lieutenant-go governor when by
| reason Of tie in the vote cast. there has been
| no choice by the people; thirdly. all matters of
contest arising out of the alleged election OF any
| person. either Governor Lieutenant-eov-
ernor, and consequently, all questions affecting
the right OF any person to hold the Office of eth
| err Governor or Lieutenant governor.
1 The phrase contested elections has no tech
| meal or legally defined meaning. An election
lection is formally urged against it which, if
found to be true in fact. would invalidate it
This must be true both as to objections founded
| uron some constitutional provision we'll as
upon any mere statutory enactment
The primary meaning of the verb ito con-
test" given by Webster, is Ito make q subject
of dispute. contention or litigation; to call in
question:, to controvert, to oppose; to dispute
1t is further defined as meaning ito defend as a
suit other judicial proceeding; to dispute re-
sist, as claim. by due course of law; to rigate.
The power, therefore. to determine contested
elections for Governor or Lieutenant governor,
necessarily carries with it jurisdiction every
possible objection which may under the Consti-
tuition any statute, be urged against the so.
those Offices Section 4743. R. s. 1881, and the
next three succeeding sections, prescribing the
manner of proceeding in contesting the election
of State officers, evidently intended to carry
into effect the provisions of the Constitution con-
corning contested elections for Governor and
Lieutenant governor; but the subsequent sec
ton, 4756, which states generally. the causes fol
which an election may be contested. does not
specifically enumerate the objection presented in
, this against the validity of the election of
the appellant as ACKNOWLEDGEMENTS as q cause
of contest; and it is. for this reason, claimed
that the General Assembly has no jurisdic
ton to hear and determine such
contest as the complaint in this case was intend
! ed to present, and that hence, there being ne
other remedy, the courts must have Jurisdiction
: to hear and determine such contest Th
tribunal having only statutory jurisdiction t,
hear and determine contested election case, thu
claim might have much plausiblity. but IS an
: | plicable to tribunal upon which the Constitu
}, ton has conferred complete jurisdiction, such
claim can have no foundation. 1t must be born
' in mind that the Constitution says that .'coa
I | tested elections for Governor and Lieutenant
q governor shall be determined by the General As
Q sembly." This is equivalent to saying that al
: such contested elections must be determined
e The failure. therefore, of the General Assembl,
u to provide that particular state of facts which
/ under the Constitution ought to render an cleo
} ton for Governor or Lieutenant governor wal
, i'd shall constitute cause of contest. is simp l.
- failure on its part to fully all the require
IS ments of the Constitution. and. in the =ery nat
ure OF things, no authority is thereby conferre
upon the courts to supply the omission.
u AS construe the various sections of the Con
d stituton having some bearing on the subjec
J. under discussion, in the light Of the principle
20 and usages governing American elections, tn
r election of Governor or Lieutenant goYerno
maybe contested for causes other than thos
e, specifically enumerated in the statute. If tn
3 person receiving the highest number OF vote
y should prove to be- an idiot, or insane, and henc
10 incapable of either comprehending the nature O
IN the oath he would be required to take. of di
al charging the duties of the Office to which he ha
1e been elected, might not such a palpable disqua
,: ifcation be made ground of contestl So, if til
al person receiving the greater number OF vote
q should, after the election, commit some hie
crime or misdemeanor, amounting to an in
ng peachabie offense under the Constitution
ed committed after taking Office, might not II
Il. General Assembly. upon a contest declare hi
es to be incapable of taking the oficea If thel
" was no vacancy in the Office at the time the ele
ss- ton was held. or ii the vacancy one while
w the people were not authorized to fill at th
no time, could not either Of such facts
on brought to the attention of the General Asser
nd bly, by an elector, the provisions of Section
SO 4743 and 4744 Of the statute above referred
n and the validity Of the election be thus contes
It's edo If not why notl
er But. however that may be. /. for the reason
lie given maintain that whatever power the cour